This text is based on a talk given by Sonel on 24 February 2016 at an ILPA event on family immigration law.

Since 2012, family immigration in UK has taken a particularly nasty turn, even where and maybe especially where, the sponsor is a British citizen. There was Quila, interfering with the right of 18-21 year old British citizens to marry, Bibi which is still pending a full judgment but imposes language tests on foreign spouses of British citizens pre-entry and there’s of course the MM case (consisting of multiple appellants) heard at the Supreme Court this week.

These are people who didn’t think they could become victims of immigration in their own country, but are now part of divided families or living in exile simply because of how UK immigration rules treat their foreign spouse and adult dependant relative.

Justifications

The government has provided four justifications for its rules:

• net migration
• abuse
• integration
• burden on taxpayer.

However it is failing on them all.

1. It seems every time figures are released, the government is further away from its net migration target.
2.  The rules do nothing to genuinely tackle abuse. There was no abuse on the ADR front previously anyway and sham marriages even by the government’s own count, have been a tiny percentage of all applications – another sledgehammer to crack a nut strategy adopted.

With politicians it’s more often about being seen to be tough than actually being effective.

1.  On integration the rules hinder rather than promote even the British citizen’s ability to get involved in the community, because

• we’re forced into exile or
• we must work a crazy number of hours to try and meet the income threshold and
• have to use all our annual leave to look elderly parents abroad.

And this interference with our ability to integrate is exacerbated by visit visas for foreign family being increasingly difficult to obtain.

1.  And the rules we believe are increasing the burden on taxpayers

Single parents

As a single parent, sponsors are able to claim more in welfare than they would if their spouse was here to boost the HH income. This is especially evident for people like Lisa; her ex-husband has put in place a Prohibited Steps Order – the law doesn’t allow her to take her kids out of the UK and she lives in a part of England where £18,600 is just not feasible, especially for a single parent. With her parents and brother having passed away, she has no other family to help her except her husband. So Lisa is forced to rely on benefits.

ADR

On ADR, the government’s own claim is that the cost to the NHS from adult dependant relatives is about equal to the revenue generated from their visa application fees – so even the government’s own research doesn’t show any great burden. Factor in the brain drain from professionals moving to countries where they can live with family and there is a clear cost to the taxpayer from not allowing ADR in. The BMA especially is struggling with this as NHS trained staff leave to live in countries like Australia, Singapore and Canada where they can live with their elderly parents.

One member told us that if her 77 year old Russian mum is not allowed here, she and her husband would have to leave the UK which the Home Office has told them they should do – but what then for the livelihood of the nearly 50 people they employ? Some or all will be reliant on welfare for some time.

And even if NHS was a legitimate concern, it could be have been more reasonably addressed by way of the Immigration Health Surcharge, mandating private health insurance, taking a bond from sponsor, ring-fencing assets in case welfare accessed, or just by using the minimum income requirement recommended by the Migration Advisory Committee, which the government thought was acceptable for spouse visas.

Free movement

With FM often the only viable route to family reunification, the government scores another own goal. UK loses on out visa application fees, there are no language tests to pass and non-EEA do have recourse to public funds even before permanent residency.

Ironically, despite the government saying it wants to ensure those who make a home in the UK can afford to do so, its rules are increasing the burden on tax payers and leaving many families worse off financially because of things like

1. higher spend on childcare than the sponsor earns in those extra hours worked to meet the income threshold, or
2. the sponsor moves to a different area for the magical £18600 job but the higher cost of living there means there’s less money in their bank account at the end of the month
3. and then there’s the strain from having to maintain one home in the UK and another abroad

There are of course non-monetary consequences of these rules too

• Damage to physical and mental health – depression isn’t uncommon. One of our members suffered a miscarriage from over-working in trying to sponsor her husband.
• Some delay having babies, a handful have even had abortions. They tell us that they can’t risk taking maternity leave lest the income threshold burden falls on the male partner alone in the now longer 5 year probationary period – many are genuinely scared the Home Office will increase £18600 to match the requirement for Tier 2 workers.

• Job motivation and career progression – medical staff have spoken about the guilt they feel looking after other people’s parents in the UK, but prevented from doing so with their own. Some decline a promotion since needing to make frequent trips abroad to look after elderly relatives means they can’t take on more responsibility at work

• Family bonds are prevented from being developed between grandchildren and grandparents – whether the grandparents have fallen foul of the ADR rules or whether the grandparents are in the UK and the rest of the family lives in exile because of the spouse rules. Children are separated from their parents and sometimes even from their siblings as parents in different countries split the child-rearing responsibilities.

• British students are also unable to complete their studies because the rules mandate that a british masters student wishing to sponsor a foreign spouse must meet the income threshold but an international student on the same course, at the same university, doesnt have to meet the same requirement.

The rules aren’t fair, they’re not working even to meet the government’s own aims, and there’s nothing to show that pre-2012 they weren’t working better.

Politicians say one thing but do another

David Cameron said ‘when people’s love is divided by the law, it’s the law that needs to change’, various election manifestos claim families are the bedrock of our society, MPs like Jeremy Hunt and Simon Hughes lecture us on how we should learn from Asian and African cultures on how to care for elderly relatives with nursing homes to be the last rather than first resort, and David Hanson reflected on how enriching his upbringing was for having his grandparents part of the household. They are all saying the right thing.

Yet:

• Migration Observatory has found the spouse rules discriminate on grounds of gender, age, location, socio-economic group and ethnicity. Incidentally, when I asked an analyst at the Migration Observatory if they were going to do a report on ADR they said there just wasn’t enough data to analyse, which ties in with our own inability to get meaningful information from the Home Office.

• A recent MIPEX study says UK now has the least family friendly immigration policy in developed world – we’re ranked last; Children’s Commissioner in England has spoken out about the damaging affect the rules have on kids and that their best interest is not being taken into account.

• On ADR the government actually encourages admitting parents into nursing homes, tells us to outsource their care. The government’s own example is that an 85 year old blind man living alone in Afghanistan, who can’t bathe dress or cook for himself, will not meet the ADR rules as his only son, who lives in the UK, has the money to pay for a carer to see him every day. If the son didn’t have the money, Home Office would have cited burden on taxpayer to refuse. It’s a catch 22 and as has been said by lawyers and parliamentarians, the ADR rules really are a ban masquerading as a rule.

With ADR there’s no respect for the emotional care only families can provide, nor understanding that even in the UK we’ve had cases of neglect in nursing homes brought to light only when a family member visits. The situation in other countries, with less regulation is only going to leave the elderly at the mercy of paid help who know their service will hardly ever be scrutinised as the rest of the family lives abroad.

The HO response, rather than take on board any of this evidence showing the rules are not working, is to ignore it all and instead propose a further 25% increase in family visa application fees. It’s this continued attack on families which is particularly grating. Indeed, the only evidence Home Office ever seems to take into account is that from the independent Migration Advisory Committee – though even MAC said government has misused their recommendations on the minimum income requirement.

Hypocrisy

Our organisation is not advocating for open borders – we understand there’s an economic aim in immigration controls – but rules must be fair in both their intent and application.

With refusals so often stating that there’s nothing to stop the family from living in the applicant’s home country it seems quite cheeky that we presume other countries must accord their nationals the right to live with foreign family, when we don’t accord the same right to our own nationals.

‘Unintended’ victims?

It’s not just always the less well-off families who caught by the immigration rules:

• On the ADR front it’s usually working professionals and higher rate tax payers, sometimes in occupations on the skilled shortage list.
• On the spouse side, it’s asset-rich pensioners who are effectively told to sell their mortgage-free homes to show HO the money; self-employed are especially penalised.

An example which may resonate with this audience is that of one of our members who wanted to return home with his wife from South Africa where he’d been living for close to a decade. However, as a self-employed barrister even if his earnings in South Africa and potential earnings in the UK were over the threshold, coming home would mean being apart from his wife for over 12 months because the rules don’t seem to make any allowance for potential self-employment income to count towards maintaining a continuous family life. [N.B. Jonathan Kingham is getting one of his solicitors to look into this for me as he’s not sure either – what I’ve said might not be quite correct, although the evidential requirements does mean even if the route is possible it won’t be easy].

It astounds families that in order to be able to live in their own country they must first endure a lengthy separation from their partner and subject their children to a single-parent upbringing for that period.

So many don’t even bother applying for a visa – which is why the HO statistics understate the problem.

Using free movement rights

Where people no longer want to try to meet the rules or can’t wait for change, they’re using free movement to live in another member state and often to return home, in what is known as the Surinder Singh route.

I’ve heard this called a loophole by the media and even a few lawyers – it is absolutely not that.

Loophole has negative connotations as if it’s something that must be closed or is an unintended consequence of policy. Surinder Singh route is in fact is a tried and tested method, been around for over 20 years and part of case law. However, pre-2012 it was hardly ever used.

Despite the benefits of free movement already mentioned, many people would rather have no recourse to public funds, they’re prepared to pay the UK fees and they’d prefer to sit the language tests. The EU route is not for all – it’s not cheap or convenient and it requires you to risk your career and financial security.  Mortgages, kids at school, critical time at work all mean relocating can be untenable.

The worst type of free movement cases though are dual-citizens who renounce their British citizenship, to rely on say Irish nationality to be in the UK with their family. Giving up citizenship is a huge step – some do it to reduce the iteration of moving to another EEA state or trying to meet the UK rules, others because they’re genuinely ashamed to be British, feeling that politicians and courts don’t respect the right of a British citizen to live in the UK.

There is very much a deep sense of betrayal that EU citizens have more rights to family life in the UK than British citizens do. And this can lead to some resentment of the EU which is obviously misplaced – it’s our government that’s put us in this position with EU representing only a much-needed lifeline.

I try and remind myself and our group that that in terms of wanting equality it’s important we fight for our rights to be levelled up rather than someone else’s to be levelled down. However the government’s response to demands of equality has been to make things worse for everyone – British and other EU citizens – with the proposed new EU deal.

Application of the rules

The problem with the rules goes beyond just what they are. It’s also how they are applied.

ECOs routinely make mistakes. For example, the miscarriage case mentioned earlier. She did meet the income threshold, but her husband’s entry clearance was nevertheless refused because the ECO said the threshold was met using overtime payments which in his view “cannot be guaranteed”. This is despite Appendix FM stating “Overtime, commission-based pay and bonuses will be counted as income from employment…”

It’s however perhaps not surprising that caseworkers make mistakes. The rules are contradictory – for e.g. whether non-salaried employment counts towards gross income depends on what part of the rules or guidance you read. [paragraph 18(e) of Appendix FM-SE, para 9.3.5 or the chart on page 14 of the guidance.]

And they’re so complex that even experienced immigration lawyers sometimes have trouble understanding them. Indeed, the Home Office lawyer, a QC, in the MM case implied that the minimum income requirement could be adjusted to reflect third party support in the form of free accommodation. However this is not in line with the rules nor how they are applied. Hence we get bizarre situations where someone living in London, paying £1000 a month in rent, with a huge credit card debt on paper satisfies the rules to sponsor their spouse because of a £19,000 salary, while a debt-free person in the North of England who’s paid off their mortgage doesn’t because their salary is £15,000.

This is because there’s no near-miss approach in the rules, which actually specify that caseworkers are not allowed to exercise any discretion or flexibility with regard to the level of financial requirement. This leads to absurd refusals entirely in accordance with the rules, such as where a sponsor earned £0.69 a week below the threshold but entry clearance for her spouse was refused; her savings were completely ignored since they were below £16,000.

On appeal I’m told, the Home Office Presenting Officer said that she, a British citizen and her baby, also British, could move to Pakistan. In his view, since she spoke Urdu and was Muslim she wouldn’t have any trouble fitting in!

There’s a lot more wrong with the rules than I can cover today, but the tickbox mentality and annualising the lowest payslip even where the threshold overall is met, are particularly perverse.

It’s all about numbers!

The rules, the way they’re worded and applied leads me to conclude the intent of the rules isn’t to meet all four aims, or to make it harder for people to come in – but it’s to encourage people to leave.

Not letting one family member person in, means often you have one, two or three and more leaving the UK. A boon for the net migration target. That this the key motivation behind these rules is summed up well by the wonderful Lord Avebury:

“The Government want to get total net immigration down to below 100,000 by hook or by crook, and they do not care if in the process they divide thousands of families by excluding spouses and elderly parents.”

Families are an easy target. We’re not big companies whose voice the government hears when tightening of skilled migration is bad for­ business. We’re not universities with the power to lobby the government when its treatment of international students endangers our higher education sector. We do not have limitless funds to fight the Home Office for our rights – when so often even a clear caseworker error makes re-applying easier, quicker and cheaper than appealing if allowed, or where even a win at tribunal sees the Home Office appealing further. Whilst companies refused a visa for an employee may find a replacement, families are not so easily substituted.

So families find innovative ways to spend time together.

Halima is from Kenya and her husband Eric, the UK. She told me when their kids go to bed, she and Eric put on the same movie, pressing the play button simultaneously, while keeping Skype on, on another device to talk to each other throughout the movie – loo and food breaks complicate things, but it is a way for them to pretend they’re together.

Like them, thousands are now Skype families; we have a generation of kids growing up with computer mummies and daddies.

The mum of one little girl was telling me her daughter’s only memory of her dad is talking to him on Skype. So all the girl knows is her dad’s head and shoulders. On one call, when the she was about two, the child started clapping and laughing hysterically, yelling ‘Daddy has legs’. Turns out it was the first time she could remember seeing his legs, because he’d never before stood up during a call with her.

Cute but sad – I have fond memories of running to the door to be swept up by my dad when he returned home from work and now so many kids are not able to make precious memories like that because of political egos. Immigration tribunals also don’t seem to make sufficient allowance for how the rules are affecting children.

Family courts on the other hand are more respectful towards families. There was a case in a UK family court where the judge refused to let a woman move overseas with her son, agreeing with the UK-based dad’s claims that a long-distance relationship wasn’t enough – ‘you can’t hug Skype’ I think he said. Hopefully this attitude to families find its way to immigration tribunals and indeed, the Supreme Court!

Families are resilient and most are making the best of a bad situation, but we have all have had enough.

Hopefully the Supreme Court rules on the side of families with the MM hearing this week – we don’t want it to go to ECHR which the MM lawyers have indicated will be the next step if the appeal isn’t allowed. And we have fingers, toes, all crossed for our absolutely fabulous legal team, consisting of Migrant’s Law Project, Nathalie Lieven and Duran Seddon, to hit a home run for Adult Dependant Relatives in the High Court this April.